Scots consumers 'to miss out' on access to justice reforms as Legal Services Bill debate reveals Law Society calls the shots on ‘Tesco Law’

Scottish Parliament debated Legal Services Bill. THE LEGAL SERVICES BILL for Scotland, proposed by the Scottish Government to improve Scots consumers access to justice “is turning into little more than a legislative time wasting exercise controlled by the legal profession” according to consumer sources today, after the developments of the past week which saw the bill debated at the Scottish Parliament last Wednesday 28 April where the Bill was passed by 98 votes to 2, amid many retractions by Scottish Ministers on key parts of the bill after intervention by the Law Society of Scotland.

Last Wednesday’s tedious & winding debate, which left spectators in little doubt this piece of access to justice legislation was developing into ‘little more than a protection racket for the current legal services monopoly held by solicitors in Scotland’, saw many retractions of the proposals aimed at allowing Scots consumers to make their own choice on where they could purchase legal services, such as from independent non-lawyer owned legal providers, as opposed to the current Law Society controlled monopoly on legal advice. The Holyrood debate was then followed by a remarkably staged piece of theatre two days later on Friday, where the Law Society of Scotland’s Council, who purported to be previously in favour of alternative business structures voted to oppose abs allowing non-lawyers majority ownership of existing law firms.

Legal Services Bill Stage 1 Debate – The only people not consulted appear to be consumers & fee paying clients ! (click on the links to watch video of the debate)

Fergus Ewing Opening Speech Legal Services Bill Scottish Parliament 28 April 2010 Part 1

Fergus Ewing Opening Speech Legal Services Bill Scottish Parliament 28 April 2010 Part 2

Bill Aitken Opening Speech Legal Services Bill Scottish Parliament 28 April 2010 Part 1

Bill Aitken Opening Speech Legal Services Bill Scottish Parliament 28 April 2010 Part 2

Richard Baker Legal Services Bill Scottish Parliament 28 April 2010

David McLetchie Legal Services Bill Scottish Parliament 28 April 2010

Robert Brown Legal Services Bill Scottish Parliament 28 April 2010

Nigel Don Legal Services Bill Scottish Parliament 28 April 2010

Bill Butler Legal Services Bill Scottish Parliament 28 April 2010

James Kelly Legal Services Bill Scottish Parliament 28 April 2010

Fergus Ewing Closing Speech Legal Services Bill Scottish Parliament 28 April 2010

Two days after the Holyrood debate took place, an already planned policy change was voted through by the Law Society of Scotland’s ‘Council’, which changed its policy on alternative business structures (ABSs) to support majority ownership (51%) of law firms remaining with solicitors or solicitors with other ‘regulated’ (preferably self regulated, of course) professionals. More changes are planned, on the Law Society’s stance on the Legal Services Bill itself, as well as a slew of amendments the Society has persuaded (forced) the Scottish Government to undertake to the bill during it’s next hearings at the Scottish Parliament’s Justice Committee.

Law Society President Ian Smart. Commenting on the Law Society’s vote change, and making reference to further, if unspecified amendments the Law Society are seeking to what was once a consumer choice bill, now little more than a lawyer’s own market protection bill, the Law Society’s President, Ian Smart in a media release said : “We have listened to the profession and there are strong differences of opinion about the way forward, with large and small firms on both sides of the debate. There does, however, seem to be an acceptance that ABSs are inevitable, as reflected in the parliamentary vote, and that a compromise must be found. ”With that in mind, the Society’s Council – which includes solicitors from every sector of the profession – has adopted what it believes to be fair and reasonable compromise position, which would prevent outright external ownership, for instance by supermarkets, but allow firms to compete in a changing marketplace.”

Mr Smart ended by saying : “The next stage of the parliamentary process, which involves making detailed amendments, is almost upon us so the need to present a clear Council policy without further delay was uppermost in the minds of Council members. “We remain committed to ensuring that the proposed legislation is effective, workable and in the interests of the profession and the public. To achieve that, we will remain in discussions with all interested parties and continue to welcome feedback from solicitors.The revised policy will be put to the Society’s membership at its annual general meeting on 27 May. We hope that others will recognise the benefits of supporting a compromise position.”

“Making detailed amendments” …. that will of course relate to ensuring solicitors control the legal services market in Scotland, and ensure any ‘consumer choice’ is killed off at birth .. and with the Scottish Parliament & Scottish Government apparently so willing to bend to the Law Society at every stage, consumers shouldn’t expect much from this fatally damaged piece of legislation. There is little doubt now the Legal Services Bill will end up as badly damaged as the Legal Profession & Legal Aid (Scotland) Act 2007, and will do nothing for Scots consumers, in terms of widening choice of legal services & access to justice.

Background : The Legal Services Bill (Scotland) came into being after the consumer organisation Which? issued a “super complaint” to the Office of Fair Trading under section 11 of the Enterprise Act 2002, stating that the consumer interest was being harmed the restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates.

The OFT’s response to the Which? super complaint can be viewed here : OFT response to super-complaint (pdf) along with their comments from July 2007 which stated : “Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services.”

The Scottish Consumer Council, now renamed Consumer Focus Scotland, issued its response to the OFT’s consideration of the Which? super complaint, broadly supporting the moves to open up Scotland’s legal services market. The SCC’s reply to the OFT can be viewed HERE (pdf)

You can read the full official report of the debate here : Legal Services Bill Stage 1 Debate Wednesday 28 April 2010 and you can find out more about the Legal Services Bill here : Legal Services Bill (Scottish Parliament)

You can read my own coverage of the Legal Services Bill here : Legal Services Bill for Scotland - The story so far